Miller v. Thurston

• Decision Date: 23 July 2020
• Docket Number: No. 20-2095,20-2095
• Citation: 967 F.3d 727
• Parties: Bonnie Heather MILLER; Robert William Allen; Adella Dozier Gray; Arkansas Voters First Plaintiffs-Appellees v. John THURSTON, in his official capacity as Secretary of State of Arkansas Defendant-Appellant Honest Elections Project; State of Ohio; State of Alabama; State of Alaska; State of Arizona; State of Indiana; State of Kentucky; State of Nebraska; State of North Dakota; State of Texas; State of Oklahoma; State of South Dakota; Arkansas State Chamber of Commerce Amici on Behalf of Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

967 F.3d 727

Bonnie Heather MILLER; Robert William Allen; Adella Dozier Gray; Arkansas Voters First Plaintiffs-Appellees

v. John THURSTON, in his official capacity as Secretary of State of Arkansas Defendant-AppellantHonest Elections Project; State of Ohio; State of Alabama; State of Alaska; State of Arizona; State of Indiana; State of Kentucky; State of Nebraska; State of North Dakota; State of Texas; State of Oklahoma; State of South Dakota; Arkansas State Chamber of Commerce Amici on Behalf of Appellant

No. 20-2095

United States Court of Appeals, Eighth Circuit.

Submitted: July 8, 2020

Filed: July 23, 2020

David Couch, David A. Couch, PLLC, North Little Rock, AR, Mark P. Gaber, Christopher Lamar, Dana Paikowsky, Paul March Smith, Campaign Legal Center, Washington, DC, Ruth M. Greenwood, Campaign Legal Center, Cambridge, MA, Annabelle E. Harless, Campaign Legal Center, Chicago, IL, Robert Neil Weiner, Arnold & Porter, Washington, DC, for Plaintiffs-Appellees

William C. Bird, III, Nicholas Jacob Bronni, Michael A. Cantrell, Assistant Solicitor General, Vincent M. Wagner, Attorney General's Office, Little Rock, AR, for Defendant-Appellant

Cameron Thomas Norris, Consovoy & McCarthy, Arlington, VA, Patrick N. Strawbridge, Consovoy & McCarthy, Boston, MA, for Amicus on Behalf of Appellant(s) Honest Elections Project

Benjamin Michael Flowers, Attorney General's Office, Columbus, OH, for Amici on Behalf of Appellant(s) State of Ohio, State of Alabama, State of Alaska, State of Arizona, State of Indiana, State of Kentucky, State of Nebraska, State of Texas, State of Oklahoma, State of South Dakota

Justin Taylor Allen, Gary D. Marts, Jr., Wright & Lindsey, Little Rock, AR, for Amicus on Behalf of Appellant(s) Arkansas State Chamber of Commerce

Before GRUENDER, WOLLMAN, and GRASZ, Circuit Judges.

GRASZ, Circuit Judge.

The plaintiffs sued to enjoin the Arkansas Secretary of State from enforcing Arkansas's initiative petition rules requiring in-person contact between petition circulators, petition signers, and notaries. As applied to them, the plaintiffs claimed, these requirements violate their First Amendment rights. The district court granted a permanent injunction, and Arkansas appealed. After Arkansas moved to stay the district court's judgment pending appeal, we consolidated the motion with our consideration of the merits and ordered expedited briefing and oral argument. With both now ripe for decision, we reverse the district court's judgment and deny the motion to stay as moot.

I. Background

The Arkansas Constitution allows "legal voters" to "propose a constitutional amendment by initiative petition." Ark. Const. art. 5, § 1. Arkansas Voters First ("AVF"), a registered Arkansas ballot question committee, is sponsoring a ballot initiative to amend the Arkansas Constitution's redistricting provisions. With the goal of having this initiative placed on the upcoming general election ballot, AVF launched its campaign and began circulating a petition in March 2020, during the COVID–19 pandemic. Now, in light of the pandemic, AVF and the other plaintiffs claim they cannot comply with Arkansas's in-person petition circulation and notarization rules.

Both the Arkansas Constitution and the Arkansas Code require petition circulators or "canvassers" to attach to the petition an affidavit affirming compliance with various procedural rules, including that all the petition signatures were made in the presence of the canvasser. Ark. Const. art. 5, § 1 ; Ark. Code Ann. § 7-9-108. This affidavit, the Arkansas Supreme Court has clarified, must also be notarized in person. See Roberts v. Priest , 334 Ark. 503, 975 S.W.2d 850, 855 (1998). Plaintiffs claim they cannot comply with these two in-person requirements during the COVID–19 pandemic.

Robert Allen is a registered voter in Arkansas undergoing chemotherapy to treat his stage IV bladder cancer. With the exception of medical appointments, Allen's doctors advised him to stay home and limit in-person contact to his wife and healthcare workers. Adella Gray is a registered voter living in an Arkansas retirement community with over 400 other residents, all of whom, including Gray, are particularly vulnerable to COVID–19 because of their age. Both Allen and Gray want to sign AVF's initiative petition but claim they cannot comply with Arkansas's in-person signature requirement without putting their health and the health of others at serious risk. This, they claim, prevents an AVF canvasser, like Bonnie Miller, from safely soliciting their signatures. And while Miller is not particularly vulnerable to the virus like Allen and Gray, she also claims she cannot comply with Arkansas's in-person notarization requirement without risking both her health and the health of the notary. So AVF, Miller, Allen, and Gray sued to enjoin Arkansas's Secretary of State from enforcing the in-person signature requirement and the in-person notarization requirement. They claimed enforcement of these requirements during the COVID–19 pandemic would impermissibly burden their First Amendment rights to express their position on a political matter.

The district court preliminarily enjoined Arkansas's Secretary of State from enforcing the in-person signature and notarization requirements. Applying strict scrutiny, the district court concluded enforcement of these two requirements during the pandemic would likely violate the plaintiffs’ First Amendment rights to free expression. Even though the plaintiffs asserted only an as-applied challenge, the district court clarified that the injunction applied to not just the plaintiffs in this case or AVF's initiative petition specifically, but to any initiative petition filed with the Arkansas Secretary of State. The district court then prescribed the use of modified Arkansas statutory form documents which, in the district court's view, solved the alleged First Amendment problem.¹

Following the preliminary-injunction ruling, both parties informed the district court that no additional evidence would be presented in the case. So the district court converted the preliminary injunction into a permanent injunction and entered judgment. Arkansas appealed and quickly moved for a temporary administrative stay, a stay of the judgment pending appeal, and expedited review of the merits. We granted the motion for a temporary administrative stay, consolidated the motion for a stay pending appeal with the merits of the case, and ordered expedited briefing.

The pending motion and appeal are now ripe for review, and we have jurisdiction under 28 U.S.C. § 1291.

II. Analysis

A. Standing

Before considering whether a stay is warranted or whether a permanent injunction was appropriate, we must conclude this case presents a live² Article III case or controversy. See Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). Arkansas argues it does not because the plaintiffs lack standing. See id. We review whether standing exists de novo. Dalton v. NPC Int'l, Inc. , 932 F.3d 693, 695 (8th Cir. 2019).

Each plaintiff must establish standing for each form of relief sought. Town of Chester v. Laroe Estates, Inc. , ––– U.S. ––––, 137 S. Ct. 1645, 1650, 198 L.Ed.2d 64 (2017). The plaintiffs here seek injunctive relief.

To seek injunctive relief, a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.

Summers v. Earth Island Inst. , 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). The injury-in-fact component requires "a plaintiff [to] show that he or she suffered ‘an invasion of a legally protected interest.’ " Spokeo , 136 S. Ct. at 1548 (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). And "although federal standing ‘often turns on the nature and source of the claim asserted,’ it ‘in no way depends on the merits of the [claim].’ " ASARCO Inc. v. Kadish , 490 U.S. 605, 624, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (alteration in original) (quoting Warth v. Seldin , 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ). Rather, "we must ‘assume that on the merits the plaintiffs would be successful in their claims.’ " Am. Farm Bureau Fed'n v. EPA , 836 F.3d 963, 968 (8th Cir. 2016) (quoting Muir v. Navy Fed. Credit Union , 529 F.3d 1100, 1106 (D.C. Cir. 2008) ).

Arkansas first argues a judgment in the plaintiffs’ favor will not prevent or redress their injury "[b]ecause of how they pled this case." As explained above, the Arkansas Constitution requires petition signers to sign an initiative petition in the presence of the canvasser and that the canvasser attach a notarized affidavit to each part of the petition affirming compliance with petitioning rules. Ark. Const. art. 5, § 1 ; Roberts , 975 S.W.2d at 855. And section 7-9-108 of the Arkansas Code reiterates these rules. The plaintiffs’ complaint, Arkansas says, challenged the statutory requirements but not the constitutional requirements. Thus, a favorable judgment cannot prevent or redress the plaintiffs’ injury. This argument is misplaced.

In several paragraphs in their complaint, the plaintiffs challenge the in-person petitioning rules provided in Arkansas's Constitution. Compl. ¶¶ 2, 3, 5, 71, 88, 91 (claiming "the requirements of Ark. Const. Art. 5, § 1" are unconstitutional under the First and Fourteenth Amendments). Regardless, Article III standing is not a technical code pleading requirement. See Spokeo , 136 S. Ct. at 1547. At the pleading stage, plaintiffs must " ‘allege facts demonstrating’ each element" of standing. Id . (emphasis added) (quoting Warth , 422 U.S. at 518, 95 S.Ct. 2197 ); See also Iowa League of Cities v. EPA , 711 F.3d 844, 869 (8th Cir. 2013) (stating "at ...